YOU ARE A PROFESSIONAL, ACT LIKE IT

YOU ARE A PROFESSIONAL, ACT LIKE IT

I was recently reminded of the high level of professionalism and respect with which we should treat the American judicial system and each other, when I was sworn in as a member of the Bar of the Supreme Court of the United States. I highly recommend this endeavor should you have the opportunity. As part of an American Bar Association group, I attended the first Monday in June Supreme Court announcement of decisions and swearing in. In the group were other members of the Oklahoma Bar including another member of the Oklahoma County Bar, two Tulsa lawyers and two McCurtain county lawyers. Coincidentally, I had met almost all of them previously. Happily, the nominator/sponsor for our group read the names of applicants by state of Bar membership and alphabetically. This seemed to add to the high view of the occasion.
On that Monday, decisions were read by Justice Kagan, Justice Alito and two by Justice Sotomayor. They were all unanimous opinions. No 5-4 splits or polarizing disputes on this Monday. OCBA member Kerry Maye keeps track of these things and tells me that over the years the average is just above 80% of decisions are made with 6-3 or higher affirmative votes. Chief Justice Roberts masterfully supervised the session. Afterwards, our group was fortunate enough to have 15-20 minutes with Justice Ruth Bader Ginsburg who answered questions and met with us. She did not have to do this but chose to do so. She is my oldest daughter’s, who is a practicing lawyer in California, legal hero. She would have loved to switch places with me and hopefully she can someday. I also obtained an autographed biography of Justice Sotomayor, who spoke to our local law schools a few years ago. Justice Ginsberg is extremely small and speaks softly. We were warned not to bump her and cause her to fall. I can just imagine that headline. She lit up when discussing her summer travel plans that sound absolutely exhausting. She was delightful. I have a deep abiding respect for her position, the person she is and the function she fulfills as a Justice of the United States Supreme Court.
As a litigator and trial lawyer, I see lawyers push lines in the name of advocacy on a regular basis. Also, attorneys comment on social media about jury verdicts and legal issues when they apparently have no factual bases or legal knowledge to support their opinions. I was recently in court before one of our newer Oklahoma County District Court judges and noted several lawyers who did not stand up when making announcements for a motion docket. That was unheard of when I was a young lawyer. If you were the unlucky one who failed to stand up you were usually called out for it in front of the rest. Many of the old rules have gone away, most for the better. However, respect for the judge and court have not and should not pass by. It is likely that all of this conduct contributes to the loss of civility and respect with which we treat each other.
I have included a photo of the John Marshall monument located in the Supreme Court building on the first floor. On our trip we were able to tour several areas of the building and study its history and architecture. Chief Justice John Marshall, although he was the fourth Chief Justice of the Supreme Court of the United States, is widely known for his impact on the Supreme Court and its role in government. His quotes are inscribed in court rooms across the U.S., his name on high schools, his cases foundational studies at law schools, and many of them are easily recognizable, such as: “As men whose intentions require no concealment generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said.”
Seemingly, plain spoken words of clear intent continue to have value 200 years later. Another take away from the Supreme Court tour was that our actions reflect on our profession. The architecture, history and decisions of our highest court parallel the growth of U.S. culture. If you fail to respect our judicial system including judges, jury verdicts and other attorneys, then regular people without law degrees cannot be expected to respect them either. They will follow your poor example of adding to the noise. Justice does not mean that your side wins or that the jury verdict is always in your favor. Justice means that the American judicial process has concluded with a result. Also, our nation’s capital has an abundance of great restaurants and good eating (in case you were wondering).
I recently read in the Washington Post excerpts from Chief Justice Roberts’ commencement speech at his son’s ninth grade graduation from a private prep school Cardigan Mountain School in New Hampshire. His comments generally focused on young men of privilege to be humble and loyal. He hoped they would have adversity in life so that they would know how to handle success. Objectively speaking, it was a very good speech given the age and the audience. A much broader audience than those ninth grade boys, Justice Roberts is in a position of power but may well be sending a much needed message to others.
Treat others with professional behavior and demeanor. I encourage you all to do a better job commenting and posting social media that displays our profession as honorable and respectful. After all, most of us have taken an oath when sworn into the Oklahoma Bar, the federal district court bars, possibly the Tenth Circuit Bar, other State Court Bars and maybe even the Supreme Court of the United States. Those oaths should mean something. For your consideration is the Oklahoma Lawyer’s Creed:
I revere the Law, the System and the Profession, and I pledge that in my private and professional life, and in my dealings with members of the Bar, I will uphold the dignity and respect of each in my behavior toward others.
In all dealings with members of the Bar, I will be guided by a fundamental sense of integrity and fair play.
I will not abuse the System or the Profession by pursuing or opposing discovery through arbitrariness or for the purpose of harassment or undue delay.
I will not seek accommodation for the rescheduling of any Court setting or discovery unless a legitimate need exists. I will not misrepresent conflicts, nor will I ask for accommodation for the purpose of tactical advantage or undue delay.
In my dealings with the Court and with counsel, as well as others, my word is my bond.
I will readily stipulate to undisputed facts in order to avoid needless costs or inconvenience for any party.
I recognize that my conduct is not governed solely by the Code of Professional Responsibility, but also by standards of fundamental decency and courtesy. Accordingly, I will endeavor to conduct myself in a manner consistent with the Standards of Professionalism adopted by the Board of Governors.
I will strive to be punctual in communications with others and in honoring scheduled appearances, and I recognize that neglect and tardiness are demeaning to me and to the Profession.
If a member of the Bar makes a just request for cooperation, or seeks scheduling accommodation, I will not arbitrarily or unreasonably withhold consent.
I recognize that a desire to prevail must be tempered with civility. Rude behavior hinders effective advocacy, and, as a member of the Bar, I pledge to adhere to a high standard of conduct which clients, attorneys, the judiciary and the public will admire and respect.
End Notes:
1. Gibbons v. Ogden, 22 U.S. (9 Wheaton) 1 (1824)
2. Robert Barnes, Washington Post; https://www.washingtonpost.com/politics/courts_law/ July 2, 2017.
3. http://www.okbar.org/members/EthicsCounsel/LawyersCreed.aspx

 

 

 

 

 

 

 

 

 

Byline: Michael W. Brewer is an attorney, founder, and partner of Hiltgen & Brewer, PC in Oklahoma City, Oklahoma. To contact Mike, email mbrewer@hbokc.law, call (405) 605-9000 or tweet him at @attymikeb. For more information, please visit http://www.hbokc.law.

CHOOSE TO MAKE A DIFFERENCE

CHOOSE TO MAKE A DIFFERENCE

At the recent OCBA Law Day luncheon, key note speaker Judge Clancy Smith of the Oklahoma Court of Criminal Appeals left the crowd with the closing statement that “As lawyers you all have such powers to make a difference in people’s lives. I encourage you all to use it.” Now that is a worthy and sometimes forgotten challenge. Coincidentally, in the weeks just prior to Law Day I had the privilege of hearing the story of Oklahoma District Court Special Judge Allen J. Welch, Jr. at the 10 year anniversary breakfast of the Trinity Legal Clinic organization. I have known Special Judge Welch since law school where he graduated a few classes ahead of me but I did not know of any specifics of his background and journey to law school.
Judge Welch has presided over the probate and guardianship docket for the last 6 ½ years at the Oklahoma County District Court. He has been a Special Judge at the Oklahoma County District court since 2004 and is located on the second floor. Before that Judge Welch served as Assistant General Counsel at the Oklahoma Bar Association for 10 years and before that was in private practice. He graduated from the University of Oklahoma Law School and was sworn in to the Oklahoma Bar Association in May of 1985. He and his spouse, Cindy Welch have 2 daughters ages 20 and 23. All in all, Judge Welch’s career path looks pretty clear and easy. His back story is anything but that, and also provides an example for other lawyers that each of us can make a difference.
Much of the guardianship docket involves life changing decisions and sometimes decisions that will affect future generations of family. The significance of this is not lost on Judge Welch. As a 15 year old, Allen J. Welch, Jr. stood before a guardianship judge who made a decision that affected the trajectory of Allen J. Welch, Jr. and future generations of his family. Judge Welch is much too humble a person to have this story built up as some sort of rags to riches, made for TV documentary. In the interest of privacy I am leaving out some details. Let’s say that Allen J. Welch, Jr. had been in a messy place and a judge of the court decided that there was a better place for him to be. At that moment in time lawyers were staged to make a difference in young Mr. Welch’s direction. In place was a lawyer volunteer representing the minor before the court and the Judge of the Court who made the decision.
Later in the story, another Oklahoma County lawyer became involved in directing Allen J. Welch, Jr.’s future trajectory. That lawyer encouraged him to go to college and later to go to law school. That lawyer even went as far as to seek out available scholarships from a college and have a letter sent to young Welch with tuition options for higher education. Welch graduated from East Central University in 1980 and later went to the University Of Oklahoma College of Law. However, that journey might not have begun but for the lawyer who took the time to pay some attention to this young man, seek some solutions and give him advice. Oklahoma lawyer volunteers made a difference in Allen Welch’s young life.
Judge Welch is now in a position of looking at children who are in a messy situation that he was once in, and deciding whether they would be better off in a different situation. Typically, those children are represented by volunteer lawyer advocates from the OCBA. Getting involved in Oklahoma Lawyers for Children , Youth Services for Oklahoma County , LASO or CASA of Oklahoma County are things we can all do. Attorneys took a small amount of time to invest in a young Allen Welch. Now, Judge Welch, is making similar life changing decisions for others but other attorneys need to be present for the process to occur. You can effect change by getting involved in volunteering in many of the local social and service projects associated with the Oklahoma County Bar Association. Take some time to look them up on the internet and sign up.
If you have a probate, guardianship or incompetency hearing for adults on Judge Welch’s docket, don’t fear the Court. Judge Welch is extremely friendly and helpful. A few years ago I helped some people with a step-child adoption and Judge Welch was incredibly helpful. As a trial lawyer, I don’t get much adoption work. Judge Welch did make sure everything was done according to rule and statute and somehow I managed my way through it. However, these people could not have completed the process without a lawyer volunteering time before the court. I encourage you to do the same, represent!

End Notes:
1. http://trinitylegal.org/
2. http://www.olfc.org/
3. http://www.ysoc.org/
4. http://www.legalaidok.org/
5. http://www.oklahomacasa.org/

 

 

 

 

Byline: Michael W. Brewer is an attorney, founder, and partner of Hiltgen & Brewer, PC in Oklahoma City, Oklahoma. To contact Mike, email mbrewer@hbokc.law, call (405) 605-9000 or tweet him at @attymikeb. For more information, please visit http://www.hbokc.law.

JURY SERVICE PLEASE

JURY SERVICE PLEASE

Near the end of 2016, a family friend of mine served on a criminal jury in a high profile trial in Oklahoma County. She is a highly-educated professional with a working professional husband and four children. All of her children are out of the home and she had told me she actually wanted to serve on a jury. Typically, I talk to friends who ask me if I know how to get them out of jury service which then launches me into my jury service and the American judicial system soapbox. I am also aware of many websites on how to “avoid” jury service. I do not know of any sites that talk about proudly serving on juries. I hear the same people who don’t want to serve complaining that jury verdicts are wrong or what they believe are wrong findings by jurors as they come in on cases which are splashed across the daily news. We do not really know the facts of those cases, what happened at trial or even whether the result was correct or just. In most cases we only know what the news media reports which usually contains a lot of misunderstandings of the judicial system, facts and the law.

            As lawyers, we should give our friends and family positive feedback on jury service and encourage them to serve. Many times I hear the complaint from other lawyers that jury pools are not representative because many educated working class people are able to “avoid” jury service. Who can blame people in their overly scheduled lives and busy jobs for not wanting to spend a day or two at the courthouse for nominal compensation? No one wants to be away from home and family for the time it takes to serve on the jury. I am sympathetic to the situation because as a lawyer in a jury trial I put in double or triple that amount of time, but I also understand that for every verdict that makes news stories and headlines there are dozens of regular citizens with common sense who chose to not participate in the system. This means the decisions are made by others who may reach the wrong conclusion or might get it right. You do not know whether it was really a crazy wrongly found verdict or not.

            Tell your friends and family when they ask that there are two ways of participating in the American system, voting and the jury system. If they really want to have input into the system, they need to appear for jury duty, stay on a panel rather than try to get thrown off and be one of the jurors who sits through the entire trial hearing the evidence and deciding the verdict. Until they do that, they really do not know whether a case is wrongly decided or whether your fellow citizens who did do jury duty got it right or wrong. The Seventh Amendment is unique and special. We are in danger of letting its fruits slip away. Encourage others to accept and carry their jury service out to the fullest extent when they receive a notice for jury duty.

            After all, if they like listening to alternate fact scenarios and speakers who like to hear themselves talk, they will love a jury trial. In all seriousness, our judicial system really is based on the common sense of the participants. If the people participating are not representative because the educated and employed are able to get out of jury service, then the system has a flaw which can affect verdicts. Juries are intended to represent the diversity of our community in all ways. For some reason, the voice of every mediator I know sounds off in my head at this point asking the standard opening question: Do you really want to risk your business/money/life/insert subject with a jury of twelve people off the street of X county? Even considering that, do your best to be positive and supporting of jury service since it is your and my clients that are risking their future outcomes in the judicial system. After 30 plus years of jury trials you learn to have faith in the jury system or you should not be in this profession. Tell anyone that will listen that jury service is a proud part of the American way.

 

 

Byline: Michael W. Brewer is an attorney, founder, and partner of Hiltgen & Brewer, PC in Oklahoma City, Oklahoma. To contact Mike, email mbrewer@hbokc.law, call (405) 605-9000 or tweet him at @attymikeb. For more information, please visit www.hbokc.law.

MY OCBA IS ALREADY GREAT!

 

I have taken a couple months off from writing/blogging for the Briefcase and Open and Obvious? to consider the vast volume of rants and other written communication via social network, legitimate media outlets or political administrations that have come our way since November 2016. During this time AI continues to take over human life and the legal profession, Bull remains on network television, some ABA resolution aimed at decreasing the number of law schools failed, private information has been hacked and we have a lot of judicial vacancies. In considering all of this fear-mongering, I have reached a couple of conclusions I wanted to share with you in a peaceful and non-provoking way. First, the OCBA is a great professional organization and worthy of your involvement. Next, now as much as ever, words have meaning and accuracy and the proper use of words should not be overlooked, especially by professionals.

 

          As our state legislature is back in session and addressing again how Judges are selected, the OCBA has created and distributed a PowerPoint for the use of its members in educating local civic groups on the function of the Judicial Nominating Commission (“JNC”). This PowerPoint is exceptional and you can tell that much time and effort was put into its production. I am not writing here to argue that we have the best and brightest judiciary, after all they are lawyers just like the rest of the Bar with different levels of education, experience and individual demeanor. Nor am I saying this to be critical of our judiciary or our selection process, in fact to the contrary, I am a proponent that our selection system is as good as any. I encourage all of you to learn as much as you can about the JNC so that you can spread the word among your non-lawyer friends and family that our judicial selection system could be much worse if the legislature makes some of the proposed changes. Simply by looking at other states where judges are solely political appointments or solely the result of an election process, we can see the good and bad of the other methods of judicial selection. Our system is a bit of a hybrid but gets us where we need to be with a fair and unbiased bench. OCBA in supporting this educational effort concerning the JNC is playing a significant part in educating voters. Please educate yourself and support this effort.

 

          The OCBA is again involved in the Ask A Lawyer program, seeking volunteers for the April 27th OETA session. Ask A Lawyer has been a staple of the Oklahoma Bar Association and the OCBA’s efforts to assist Oklahomans with legal issues on or around Law Day. You can be a lawyer volunteer answering caller’s questions regarding a wide range of legal issues. This event provides an excellent service to the citizens of the State of Oklahoma and deserves your support.

 

          Finally, the OCBA’s Bench and Bar CLE scheduled for March 31st at Sequoyah State Lodge near Fort Gibson puts its members in an education and social setting to learn from and interact with District Court Judges, Federal Judges and State Appellate Justices. You cannot ask for a better opportunity to get to know the lawyers you are working with (and against) and the judges you are appearing before. This type of social interaction in our profession is a must for us to be a successful Bar. We, as a profession, tend to rely on the adversarial model to solve everything. In fact, as most of you know, the majority of litigated cases settle without trial and most disputes are resolved without a Court hearing. Many times this simply takes picking up the phone and talking to opposing counsel, which is much easier to do if you have met face to face and have a relationship. The same goes with appearing before the bench. Typically a lawyer’s reputation, skills and tactics are presented to the Court before their in person introduction, by the written work product that a judge reviews before a hearing. A lawyer’s best trait might be to be known as ethical and trustworthy. The ability to properly use the English language in case submission is also a nice skill. This is something that must be maintained in your written and spoken work. Do yourself a favor and get to know the bench you practice before, don’t rely on spellcheck and always proofread.

 

          In these tumultuous times, littered with 144 character rants, it is satisfying to know that the association that we voluntarily joined is doing great. The current OCBA leadership, Judge Barbara Swinton, and the future leadership, David Cheek, put our profession first. Take advantage of opportunities provided by the OCBA, and most of all, let your non-lawyer friends, relatives and neighbors know that we are a proud and ethical profession.  Next month we will get back to something topical for your practice like jury selection. I thought this topic would be better than me filling the internet with art.  But for now, let’s make sure we open the envelope with the real winner’s names before we start congratulating ourselves on a job well done.

 

 

 

 

 

          Byline: Michael W. Brewer is an attorney, founder, and partner of Hiltgen & Brewer, PC in Oklahoma City, Oklahoma. To contact Mike, email mbrewer@hbokc.law, call (405) 605-9000 or tweet him at @attymikeb. For more information, please visit www.hbokc.law.

 

Feliz Navidad!

Feliz Navidad!

Tis the season! The end of 2016 is finally upon us. I say finally because I have memories of end of year 2014 great expectations for the year 2015. Then as the year 2015 drug along, I once again had great expectations of the year 2016. Then comes 2016 with all of its glory. After surveying the happenings of 2016, it seems to boil down to the Cubs win the World Series and look what comes with that. No, mullets are not back!

          As I have continued writing these monthly articles, with some encouragement from others, for the OCBA and the Open and Obvious? blog, it now appears to me that good things come in triples or even triple doubles. For example, 1) Don’t kneel to Negan, 2) Don’t let a Lannister lord over you, and 3) You don’t really want to find out who Wyatt is. But there are better sets of three out there than that. As we bring 2016 to a close, we should set goals for 2017 to make ourselves better, the people around us better, and our profession better.

          You can accomplish these goals in many ways, but I have a few suggestions. Get involved in OCBA and OBA Bar related activities. Our profession needs and requires a strong Bar. Not only can you keep yourself up to date on ever changing laws, regulations and ethical requirements but the social aspects of the Bar are also important. In a recent discussion I had with an opposing attorney I have known for around 25 years, he expressed to me gratitude for the situation that we were comfortable picking up the phone and calling each other to resolve questions and differences we had in ongoing cases rather than to resort to writing fax letters and nasty grams. It is a lot easier to do this when you actually know your opponent. Embrace technology in the practice of law, as it is even required by the new comments to our ethical code, but don’t forget the power of face to face meetings.

          Give back to the community which we serve. Not only should our profession be devoted to the civil justice system but also to social justice. I cannot begin to list all the excellent charities and activities in and around the Oklahoma County/Oklahoma City metro area, but there are many worthy of your time and financial support. We choose 3-5 every year at this time to make special donations to as a Firm. Social justice is a very important aspect of our professional lives. If you cannot volunteer then provide financial support so that others can carry out justice for those who have fallen through the cracks of societal supports.

          I have found that participation in Bar related education opportunities provided by the OCBA are meaningful in several ways. These opportunities range from talking with at-risk middle school kids about rights, laws and the civil justice system to presenting awards to Law Day essay contest winners in AP Government high school classes. The wide range of opportunities and lack of opportunities in our education system and the potential impact you can have goes from the impoverished with very few chances of success to those who have already planned out their educational and professional careers. It is both eye opening and rewarding. Find the opportunities and get involved. Again, I cannot list them all here but it is gratifying to observe the many examples of service from other members of our profession from different practice areas, different firm sizes and solo practitioners as they are involved in their own social justice projects and charitable giving. Unfortunately, most of these activities aren’t newsworthy so the public does not hear about them, but we as a profession should continue and advance our involvement.

          Finally, concerning a lawyer’s place in society, remember your sworn oath as an attorney and the ethical code that controls our professional conduct. Of all of the citizens in the United States who should know the Rule of Law, the U.S. Constitution and fight to protect them, attorneys are the chosen few. We occupy a special position in the American system of justice and guard its foundation, the right to jury trial. This is no small or unimportant task. Consider these things as you determine your own triple double goals for 2017.

          Be safe, enjoy the college football bowl season and Go Thunder!

          I want to wish you a Merry Christmas! And a Happy and Peaceful New Year! 

 

          Byline: Michael W. Brewer is an attorney, founder, and partner of Hiltgen & Brewer, PC in Oklahoma City, Oklahoma. To contact Mike, email mbrewer@hbokc.law, call (405) 605-9000 or tweet him at @attymikeb. For more information, please visit www.hbokc.law.

NO BULL!

NO BULL!

 

The original intent of this column has been focused on making legal practitioners aware of how changes in technology affect our profession and ethical responsibilities. I take a quick departure from that goal, but not really, to discuss a new TV series on CBS entitled “Bull”[1] I am a fan of actor Michael Weatherly previously on “N.C.I.S.”  and a fan of using courtroom science in appropriate litigation situations. However, I am not a fan of Bull.

My take away from the first episode was the mischaracterization and minimalizing of the lawyer’s role with the client and the clear trampling upon of our profession’s standing by the writers. The thought that your trial consultant’s input is more important to your client’s case than an attorney’s professional advice is a theme developed throughout each storyline thus far, and is typically overtly demonstrated by the character’s dialogue. The character, Dr. Jason Bull, apparently has the ability to replace or subjugate any lawyer his client has retained either previously or in the future. Additionally, attorney work product privilege and ethical consideration seem to have no bearing as Dr. Jason Bull can change sides in a case that he has been retained in after he decides which party is worthy of his efforts.

Next up on my criticism hit list is the entire premise of the show is off-putting. Apparently U.S. citizens who have been taught and told that one of the fundamental hallmarks of the American way that makes our country different is our civil justice system, have been duped. According to Bull’s storylines, we as citizens serving on juries, are nothing but puppets to be manipulated by Dr. Bull and his minions. Regardless of the entertainment value, the show reminds viewers every week that when you are in a lawsuit, justice doesn’t matter, your lawyer doesn’t matter and jurors are to be manipulated such that justice prevails only to the manipulators. Great thoughts for the non-lawyering public to hold about lawyers and the civil justice system, right?

The entertainment value is average to above average primarily because of the use of technology to measure juror and shadow juror responses, but I cannot get beyond my lawyer eyeglasses on this show’s inherent flaws. I am not a fan of the messages that are being sold to the viewing public by this new series. Moreover, in a recent episode set in a fictitious Texas venue where stealing your opponents notes, strategy and playing every local good old boy trick in the book including getting the other side drunk before closing statements is just playing by the rules of the game. It is also ok to manipulate the courthouse elevators with jurors in them so as to demonstrate the points of your closing statement and the county wide weather warning system so that jurors will be forced to go in a basement where they can overhear rehearsed statements otherwise not admissible in court.

Sure, I am a believer in knowing your venue, effective voir dire, mock trials, focus groups, shadow jurors and creating juror profiles in appropriate cases. Who hasn’t been hometowned at some point in life? I even retain a high quality professional juror and trial consultant when case circumstances and a client’s budget will allow. But this show takes the good part of that technology, such as having data feedback that shows a juror’s bias to your position on an issue with red, yellow and green lights on multiple computer monitors and destroys it with a negative message that potentially impacts the public perception of our profession and the civil justice system. Do jurors now expect shenanigans and manipulation distrusting even the truest of motives? For that reason, I call bull on Bull.

Quickly back on point of our Open & Obvious intended purpose, note that the Oklahoma Rules of Professional Conduct were amended by SCBD 3490 effective immediately that, among other things, in the comment section to Rule 1.1 on Lawyer Competence at note 6 the language concerning maintaining competence includes the terms “including the benefits and risks associated with relevant technology.” So there you have it, get yourself competent.

Back to last month’s article on artificial intelligence, I was thereafter greeted in my inbox by several items I refer you to including “How AI Will Change the Practice of Law”[2], “Robots in Law: How Artificial Intelligence is Transforming Legal Services”[3] and “AI Predicts Outcome of Human Rights Cases”. Researchers claim an artificial intelligence computer system has correctly predicted the outcomes of hundreds of cases heard at the European Court of Human Rights to an accuracy of 79 percent.[4] Have a Happy Thanksgiving!

 

 

End Notes:

  1. http://www.cbs.com/shows/bull//
  2. ABA Law Technology Today, Nicole Black, November 1, 2016. Lawtechnology.org/2016/11/how-ai-will-change-the-practice-of-law-by-nicole-black
  3. Publishing date November 18, 2015 by Ark Group Publishing USA; http://www.ark-group.com
  4. bbc.com/news/technology-37727387?source=techstories.org; Jane Wakefield, Technology Reporter, 23 October 2016

Byline: Michael W. Brewer is an attorney, founder, and partner of Hiltgen & Brewer, PC in Oklahoma City, Oklahoma. To contact Mike, email mbrewer@hbokc.law, call (405) 605-9000 or tweet him at @attymikeb. For more information, please visit www.hbokc.law.

 

 

 

 

 

 

 

 

 

Happy Halloween! Artificial Intelligence Attacks

Happy Halloween! Artificial Intelligence Attacks

We are always bringing some new computer program or file management system online at our firm. After the last several years of continuing education advisories that artificial intelligence is going to change the way we practice law, I pondered when these already online systems might become “self-aware”.

It all started with self-driving cars and smart trucks. Sure, who would not want to sit in their Tesla or Google vehicle watching a movie in the back seat while being driven around town? Or, how about the smart tractor-trailer eighteen wheel rig that avoids accidents. I have heard of and observed these in the real world for several years now. But can your professional judgment be replaced by a computer? What happens when businesses pool data concerning similar claims and risks in such a way that claims are efficiently handled, settled and closed…all without a lawyer or with minimal use of a lawyer. Blasphemy you say, maybe it is closer than we realize or want to acknowledge.

I finally came upon a blog article that actually makes good sense of the whole situation and want to recommend it for your viewing pleasure. It begins with a quote from a Chinese proverb “[w]hen the winds of change are blowing, some people are building shelters, and others are building wind mills.”[1] Author Steven Embry, a lawyer and “technologist” states that data analytics (DA), its brother predictive modeling (PM), combined with their new and improved cousin, machine learning “artificial intelligence” are gradually developing the highly effective tools for insurance companies and even self-insureds to better mitigate and resolve repetitive claims. Improved claims management stemming from the use of these tools would decrease litigation and legal spending, better still resulting in more predictable litigation outcomes and finally reduce overall liability exposure.

He goes on to state in his blog that industries like: 1. Hospitals and doctors “medical malpractice”, 2. Businesses with a high number of occupational claims, 3. Lawyers “legal malpractice” and 4. Assisted care facilities are a few of the industries who might use these tools to reduce indemnity spend and indirectly legal spend.[2] So essentially, the industries with the most data and similarity of claims have a better chance of utilizing the new technology to reduce their legal expenses. My conclusion, we are likely to see the insurance industry try this first. After all, these are the same people who brought us electronic billing, third party bill audits, alternative fee arrangements and staff counsel.

I get the part that I am a shelter builder and not a windmill builder but this is a profession, right? Even the local news reported last week that OKC neighborhoods are complaining about windmill noise. Isn’t there an old saying that goes something like “garbage in equals garbage out”? Are there privacy and ethical issues surrounding the use and sharing of data for DA, PM and AI to evaluate claims and settlement, sure there are. Have all of those been addressed or even thought of, probably not. So we have plenty of unanswered questions going forward but can we ignore these advancements and their effect on the legal practice and profession? Do so at your own peril. As we all know the ABA in 2012 added to the comments of Rule 1.1 that lawyers have a duty to keep abreast of the benefits and risks associated with technology.[3] Now the Florida Supreme Court has approved a rule to go into effect in 2017 requiring members of the Florida Bar to take mandatory technology CLEs.[4] Since this is for the October issue, consider that I am really only writing this article in honor of a good Halloween fright.

After all, consider that we have seen humans get into trouble when relying on AI before: 1. Skynet[5], 2. Genisys[6], 3. HAL 9000[7], 4. Auto[8] 5. V.I.K.I[9], 6. WOPR[10], 7. Agent Smith and the Machines[11], 8. The Red Queen[12].Trick or Treat?

End Notes:

  1. Data Analytics and Predictive Modeling: Game Changer for How You Manage Claims…And View Your Lawyer; Stephen Embry, Pulse, LinkedIn, 9-23-2016
  2. Id.
  3. Rule 1.1 comments, ABA Model Rules of Professional Conduct
  4. In Re: Amendments to Rules Regulating the Florida Bar 4-1.1 and 6-10.3 (Fla S. Ct. Sept. 29. 2016)
  5. Terminator films (1984-2009)
  6. Terminator Genisys (2015)
  7. 2001: A Space Odyssey (1968)
  8. Wall-E (2000)
  9. I, Robot (2004)
  10. War Games (1983)
  11. The Matrix Trilogy (1999-2003)
  12. Resident Evil (2002)

 

 

Byline: Michael W. Brewer is an attorney, founder, and partner of Hiltgen & Brewer, PC in Oklahoma City, Oklahoma. To contact Mike, email mbrewer@hbokc.law, call (405) 605-9000 or tweet him at @attymikeb. For more information, please visit www.hbokc.law.